Should Government Get Out of the Marriage Business?

Jennifer Roback Morse answers the above question in three essays—the following intro was posted here:

Jennifer Roback Morse is not impressed with the arguments of libertarians that government should get out of the marriage business and leave it to the churches:

We cannot escape the fact that marriage is an intrinsically public institution. We can’t avoid making collective decisions about its meaning and purpose. If we don’t do it explicitly, we will end up doing it implicitly.

As a libertarian myself, I have been quite disappointed that the “default” libertarian position on marriage has become little more than a sound-bite: “Let’s get the state out of the marriage business.” With all due respect, this position is unsound.

I will not be able to respond to this sound-bite with another sound-bite. The issues surrounding marriage are too deep. But I am not deterred from trying to persuade thoughtful readers who are up to the task of following a complex and unconventional argument wherever the search for truth may lead.

I make three points in this series of articles.

First, in today’s article, I show that it is not possible to privatize marriage.

Second, in tomorrow’s article, I show that the attempt to privatize marriage will not result in an increase in freedom, but will actually increase the role of the state.

Finally, in the third article, I show that attempting to privatize marriage will perpetrate great injustices to children.

Any of these reasons is sufficient to put an end to the “get the government out of the marriage business” mantra. All three of these reasons taken together form a compelling case for absolutely opposing the redefinition of marriage and for working tirelessly to create a robust cultural norm of one man, one woman, for life.

“Get the government out of the marriage business,” or its close cousin, “Leave it to the churches,” is a superficially appealing slogan. When I hear this, I often get the feeling that it is a way of avoiding the unpleasant dispute currently raging over the proper definition of marriage. I sense that its proponents are hoping we can remove this whole contentious topic from the public square and put it into the private sector. Each person or group can have its own version of marriage. The state, with its powerful coercive instruments, need never get involved in resolving this seemingly impossible stalemate.

While I understand this impulse, I believe it is fundamentally misguided. Taking a stand on the purpose and meaning of marriage is unavoidable. Here is why.

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“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” —James Madison (1792)